Uyar v Secretary of the Department of Families and Housing, Community Services and Indigenous Affairs - [2011] FMCA 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UYAR v SECRETARY OF THE DEPARTMENT OF FAMILIES AND HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS & ANOR

[2011] FMCA 684

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – applicant claiming a disability benefit – failure to attend conferences arranged by the Tribunal – Tribunal dismissing the application and refusing to reinstate it – whether the Tribunal decision was procedurally fair considered, taking into account the applicant’s asserted mental disability.

Administrative Appeals Tribunal Act 1975 (Cth), ss.42A, 43, 43AA, 44, 44AA

Goldie v Minister for Immigration (2002) 121 FCR 383
Neal v Secretary, Department of Transport (1980) 3 ALD 97
Uyar v Administrative Appeals Tribunal [2011] FCA 623

Applicant:

AYDIN UYAR

First Respondent:

SECRETARY OF THE DEPARTMENT OF FAMILIES AND HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1222 of 2011

Judgment of:

Driver FM

Hearing date:

1 September 2011

Delivered at:

Sydney

Delivered on:

7 October 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr S Thompson
Sparke Helmore

ORDERS

The appeal notified on 4 May 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1222 of 2011

AYDIN UYAR

Applicant

And

SECRETARY OF THE DEPARTMENT OF FAMILIES AND HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The appellant, Mr Aydin Uyar, claims error by the Administrative Appeals Tribunal (“Tribunal”) in its decision made on 6 April 2011 refusing to reinstate an application filed by Mr Uyar. By order dated

3 June 2011, Robertson J of the Federal Court transferred the appeal from the Federal Court to the Federal Magistrates Court, pursuant to s.44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”)[1].
[1] Uyar v Administrative Appeals Tribunal [2011] FCA 623
The first respondent to the appeal is the Secretary of the Department of Families and Housing, Community Services and Indigenous Affairs (“the Secretary”). The second respondent is the Tribunal which, in accordance with usual practice, entered a submitting appearance.
The following statement of background facts is derived from the Secretary’s submissions.
On 17 December 2009, Mr Uyar lodged a claim for disability support pension: T documents (“T”) 5/61-86. Mr Uyar’s claim was rejected on 22 January 2010 as he did not meet the required impairment rating: T7/93-94. This decision was reconsidered and affirmed on 8 February 2010 (T8/95-96) and then reviewed by an authorised review officer and again affirmed on 22 February 2010: T11/101-108.
Mr Uyar lodged an application for review of the authorised review officer’s decision with the Social Security Appeals Tribunal (“SSAT”) and on 28 May 2010 the SSAT affirmed the decision under review: T2/4-10.
On 28 June 2010, Mr Uyar lodged an application for review of the SSAT’s decision with the Tribunal: T1/1-2.
On 30 August 2010, the Tribunal wrote to Mr Uyar informing him that his application was listed for a conference on 6 September 2010.

Mr Uyar failed to attend the conference: letter from the Tribunal to the applicant dated 10 September 2010.
On 3 November 2010, the Tribunal wrote to Mr Uyar informing him that his application was listed for a further conference on 3 December 2010 and that he was to provide any further medical evidence prior to the conference.
Mr Uyar rang the Tribunal on 12 November 2010 and requested that the conference be a telephone conference: Tribunal file note dated
12 November 2010. At the request of Mr Uyar, the conference was changed to a telephone conference: letter to the applicant dated
18 November 2010.
The Tribunal was unable to contact Mr Uyar at the time scheduled for the telephone conference. Mr Uyar contacted the Tribunal one hour after the scheduled time. This matter was referred to in the Secretary’s submissions in the Tribunal dated 14 March 2011.
On 8 December 2010, the Tribunal wrote to Mr Uyar informing him that his application was listed for a further telephone conference on

16 December 2010. The Tribunal was unable to contact Mr Uyar at the time scheduled for the telephone conference. This matter was referred to in the Secretary’s submissions in the Tribunal dated 14 March 2011.
On 17 December 2010, the Tribunal wrote to Mr Uyar regarding:
your failure to progress this matter both in your non-availability without reason for two telephone conferences and your failure to provide medical evidence as required.
The letter informed Mr Uyar that the matter had been listed for a non-compliance directions hearing on 23 December 2010 and that:
the Tribunal may dismiss an application under section 42A(5) of the Administrative Appeals Tribunal Act 1975 if an applicant fails within a reasonable time to comply with a direction made by the Tribunal.
Mr Uyar also telephoned the Tribunal on 17 December 2010. The file note states that:
Applicant rang. Said everyone at R. thought he was a liar. Didn’t get tpc yesterday cos he got date mixed up. Went on and on. I finally got to tell him about the DH on Thursday then he went on again and hung up.
Mr Uyar failed to attend the directions hearing at the Tribunal on

23 December 2010. This matter was referred to in the Secretary’s submissions in the Tribunal dated 14 March 2011.
Accordingly, the Tribunal found that Mr Uyar had failed to proceed with the application within a reasonable time and dismissed the application pursuant to s.42A(5) of the AAT Act: Order of the Tribunal dated 23 December 2010.
On 7 February 2011, Mr Uyar sought reinstatement of his application.
By order dated 6 April 2011, the Tribunal found that Mr Uyar’s application was not dismissed in error and therefore refused to reinstate the application.

The present proceedings

Mr Uyar filed a notice of appeal in the Federal Court on 4 May 2011. The appeal was transferred to the Federal Magistrates Court by order of Justice Robertson on 3 June 2011, pursuant to s.44AA(1) of the AAT Act. Accordingly, the Federal Magistrates Court has jurisdiction to hear and determine the appeal[2] and s.44 of the AAT Act applies[3].
[2] AAT Act, s.44AA(8).
[3] Ibid, ss.44AA(9) and (11)
An appeal made under s.44 of the AAT Act is limited to a “question of law”.[4] It is not open for Mr Uyar to invite the Court to make findings of fact at variance with those made by the Tribunal.[5] The question of law must be stated with precision and constitutes a stringent requirement.[6]
[4] Ibid, s.44(1).
[5] Cook v ASP Ship Management [2009] FCAFC 113.
[6] Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, at [18]. Also see MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs (2009) 180 FCR 378, at [14].
The notice of appeal contains the following purported question of law:
I couldn’t attend the hearings because I have confused the time. Because of my mental disorder I couldn’t behave and think properly. Judge did ignore my mental disorder.
The grounds in support of the notice of appeal are as follows:
I am a fat and lame man. I cannot walk and work. … I have mental problem too. I cannot think properly.
Despite orders made on 13 July 2011 allowing Mr Uyar to file and serve any further written evidence and an outline of written submissions by 12 August 2011, nothing further has been filed by him.

The evidence and submissions

I received as evidence the following exhibits tendered during the course of the hearing on 1 September 2011:
·   A1 - Transcript of Tribunal hearing, 6 April 2011;
·   A2 - Letter from Mr Uyar to Tribunal, 3 February 2011;
·   A3 – Statement from Psychologist, 15 June 2010;
·   R1 – T Documents;
·   R2 – Letter from Tribunal to Mr Uyar, 30 August 2010;
·   R3 – Letter from Tribunal to Mr Uyar, 30 March 2011.
The Secretary submits that the notice of appeal does not identify any question of law to enliven the jurisdiction of the Court under s.44 of the AAT Act. However, it was apparent from the oral submissions made by Mr Uyar that he is asserting that the refusal by the Tribunal to reinstate his review application was procedurally unfair. I find that that is an assertion of legal error which does enliven the Court’s jurisdiction.

Consideration

Mr Uyar’s application in the Tribunal was dismissed pursuant to s.42A(5) of the AAT Act, which provides as follows:
(5)If an applicant for review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
Section 42A(6) of the AAT Act provides that if the Tribunal dismisses an application, “the proceeding to which the application relates, unless reinstated under subsection (9) or (10), is taken to be concluded.”
The power to reinstate a proceeding provided in s.42A(9) of the AAT Act is linked to s.42A(8) of the AAT Act and only relates to dismissal under s.42A(2) of the AAT Act. Therefore, it is not relevant to the current proceedings as Mr Uyar’s application was dismissed under s.42A(5) of the AAT Act.
Section 42A(10) of the AAT Act is relevant to the current proceedings and it provides as follows:
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
The power to reinstate in s.42A(10) of the AAT Act is a discretionary, rather than mandatory power.
In Goldie v Minister for Immigration (2002) 121 FCR 383 (Goldie), the Federal Court stated at [28] that:
The only limitations that we can see in s.42A(10) are:
(i) that the Tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
The Federal Court went on to state at [29] that:
We do not think it is necessary, in order to enliven the Tribunal’s power under s.42A(10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been “dismissed in error”.
The only reasons provided by Mr Uyar in support of his application for reinstatement were alleged difficulties in attending the Tribunal and “I could not obey your order my mental disorders. I confused the meeting day” (letter from the applicant to the Tribunal received 7 February 2011).
The transcript of the reinstatement application hearing on 6 April 2011 shows that Mr Uyar was given an opportunity to explain why he failed to attend the earlier Tribunal events: transcript, 6 April 2011, page 2.10-35.
However, Mr Uyar did not identify any error in the dismissal of his application and the Tribunal refused the application for reinstatement and provided the following reasons (transcript, 6 April 2011, page 3.20-35):
… I am dismissing this application to reinstate the matter for two reasons. One it was not dismissed in error. It was dismissed because you manifestly failed to progress the matter. As I said, there were two directions hearings, sorry, two preliminary conferences, which you did not attend, despite notification. There was a directions hearing, which you did not attend, despite notification. The matter was therefore dismissed, and that was not an error.
…
Secondly, I have perused the material which is presently in the file, including the decision of the Social Security Appeals Tribunal, the material upon which that was based, and I am firmly of the opinion that your present application cannot succeed on the basis.
The question for this Court to decide is not “whether or not it would have come to the same conclusion as the tribunal came to”.[7] The only question for this court to decide is whether the Tribunal erred in law.[8]
[7] Neal v Secretary, Dept of Transport (1980) 3 ALD 97, per Franki J at 100.
[8] Ibid.
The Secretary submits that the Tribunal correctly applied s.42A(10) of the AAT Act and did not make an error in law in refusing to reinstate Mr Uyar’s application.
The Secretary notes that the order of the Tribunal dated 6 April 2011 refers to ss.42A(8) and (9) of the AAT Act, rather than s.42A(10) of the AAT Act. The transcript of the hearing on 6 April 2011 shows that the Tribunal refused to reinstate the application as “it was not dismissed in error” (transcript, 6 April 2011, page 3.20). This is a reference to the power in s.42A(10) of the AAT. The Secretary submits that the references to ss.42A(8) and (9) of the AAT Act contained in the Tribunal’s order dated 6 April 2011 are an obvious error, to which the “slip rule” contained in s.43AA of the AAT Act should apply.
I accept that submission. There is no doubt that the Tribunal had the power under s.42A(10) of the AAT Act to make its decision on 6 April 2011 and the misidentification of the relevant statutory provision is a mere slip which could have been corrected pursuant to s.43AA of the AAT Act. The Tribunal’s error was administrative rather than an error of law and does not enliven the Court’s jurisdiction to intervene.
I have considered Mr Uyar’s contentions that it was procedurally unfair for the Tribunal to refuse to reinstate his review application in the light of his asserted mental disability. Mr Uyar’s claim for a disability pension was based primarily on asserted physical disorders but included an asserted psychological/psychiatric disorder which was considered by the SSAT. Exhibit A3 is an assessment by a psychologist (Shalav Mehta) which was before the Tribunal. Mr Mehta offered a diagnosis of post-traumatic stress disorder and depression. Mr Uyar asserts that, by reason of these disorders, he was unable to comply with the Tribunal’s procedural requirements and that the Tribunal failed to take into account that disability in refusing to reinstate his review application.
The transcript (exhibit A1) shows that the following exchanges occurred between the Tribunal and Mr Uyar at the hearing on 6 April 2011:
HIS HONOUR: All right. Okay. Now Mr Uyar, your matter was dismissed for failure to progress it.
MR UYAR: Yes, because I couldn’t attend one of your colleague in the hearing, I think I may---
HIS HONOUR: Why couldn’t you attend?
MR UYAR: I couldn’t, I couldn’t remember the time. I misunderstood the time for it. I couldn’t, so I missed it one day. And I called, I remember I called one of, I think senior man, who goes, and expressed my situation. He said that he has to fix it, he wants to but when I called again, I think he is out. There was another woman, over there. So already they sent me letters, what happened. This okay, I understand this. Because I cannot think properly, some mental problem I have. It’s high depression, I think anyway. So, it’s okay, it’s okay. I write letters then, and you called me again here. I just came here and we see. In, through well, difficult, but.
HIS HONOUR: Well look, Mr Uyar, there has been two preliminary conferences you have not attended, despite notification.
MR UYAR: I think I don’t remember the last time I understand.
HIS HONOUR: Mr Uyar, I am going to cut this short. I will give you this one; you have manifestly failed to address this matter. There was two preliminary conferences you failed to attend. There was also a notification sent to you about a directions hearing and you never attended that, so you had your chance.
MR UYAR: But I, sir, I tell you. I called; they changed my hearing through call, by call. I called many times, but I, I think I forgot your call, last time.
HIS HONOUR: Yes, as I said, whether you forgot or not, the fact is you didn’t attend and the matter was dismissed in your absence.
MR UYAR: Sir, I have - - -
HIS HONOUR: And also, I’ve - - -
MR UYAR: - - - some mental problem. My friend, I have, I cannot understand exactly. I don’t - - -
HIS HONOUR: Yes, well. You may have a mental problem, but you didn’t attend. The other point is this, that I’ve been through your matter. Have you read the decision of the Social Security Appeals Tribunal?
MR UYAR: Sir, could you repeat? My English not perfect.
HIS HONOUR: Have you read the decision of the Social Security Appeals Tribunal?
MR UYAR: Yes, yes. The judge was mentioned many things. Page, pages, pages, pages. He verify first, say that yes, he has a mental problem. He has this problem, this problem. But I reject that, because he never, he never ever work during nine years. So I reject it. But didn’t express why. And if anything is ….. badly, he will not take any responsibility. Just reject it. So I very angry at him. He says only, I read this. I understand only one thing. He didn’t he never ever worked in Australia during nine years, so I reject. And I don’t, I won’t take any responsibility. Then, when I came here, I was ….. but it was not important problem. Sudden ….. work, I had to tell him something, and my work like this, now, like this. And I work with this. Nobody take any responsibility. If, if I start in heritage, what will happen? My station will be burst, and he will not any responsibility take, he will not take any responsibility. Because, I never ever worked in Australia during nine years. The reason is - - -
HIS HONOUR: Mr Uyar, I will tell you two things now. One, I am dismissing this application to reinstate the matter for two reasons. One, it was not dismissed in error. It was dismissed because you manifestly failed to progress the matter. As I said, there were two directions hearing, sorry, two preliminary conferences, which you did not attend, despite notification. There was a directions hearing, which you did not attend, despite notification. The matter was therefore dismissed, and that was not an error.
MR UYAR: Please notice that - - -
HIS HONOUR: Secondly, I have perused the material which is presently in the file, including the decision of the Social Security Appeals Tribunal, the material upon which that was based, and I am firmly of the opinion that your present application cannot succeed on that basis.
MR UYAR: But, please notice that I have a mental problem as well. I cannot understand the situation. Even I, I don’t know what to do.
HIS HONOUR: Well, what I suggest you do is, that you go and get some further reports, and if you think you have got a mental problem – I don’t know anything about that – I see no, get a report from a psychiatrist. And if you get - - -
MR UYAR: Please. I want to express it.
HIS HONOUR: What I suggest you do is you attend at a hospital and ask to see a psychiatrist and get a report from that psychiatrist.
MR UYAR: Even I cannot put. I don’t understand you. What, I ask many time Centrelink. They have doctors.
HIS HONOUR: It’s not - - -
MR UYAR: You have hospitals. I am ready here,….. please me I have no money to go to doctor or something. It is do that. Never ever they do, they do this
HIS HONOUR: Well, you were examined by Centrelink and they found you had a work capacity, and it is - - -
MR UYAR: Please, please, order them. I am ready here. There is certain doctors, and control me. I am ready.
HIS HONOUR: Mr Uyar, I have told you, for two reasons I have dismissed this application to reinstate it. I will reiterate. One, you failed to progress the matter, you failed to attend the hearing - - -
MR UYAR: I couldn’t do this. When, I expressed - - -
HIS HONOUR: Secondly, I’ve perused all the material and I am satisfied that your case cannot possibly succeed in any event. That’s the end of it. Understood?
MR UYAR: Okay, your decision.
HIS HONOUR: Yes. Thank you.

It is not apparent that the Tribunal had regard to the opinion of Mr Mehta in making its decision but there is no doubt that the Tribunal was aware that Mr Uyar was asserting an inability to comply with the Tribunal’s procedural requirements due to his asserted mental disability. Courts and tribunals are busy places and are entitled to dispose summarily of proceedings where applicants fail to meet reasonable procedural obligations. There may, however, be circumstances where a party is unable, because of a mental disability, to conduct proceedings themselves. This Court, like other courts, has Rules of Court in place to deal with that situation through the appointment of a litigation guardian[9].
[9] Rule 11.11 of the Federal Magistrates Court Rules 2011 (Cth)
Section 33 of the AAT Act deals with the procedure of the Tribunal:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision-maker must assist Tribunal
(1AA)In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Directions hearing
(1A)The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced--by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised Conference Registrar; and
(b) where the hearing of the proceeding has commenced--by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.
Directions may be varied or revoked
(3) A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member or Conference Registrar empowered in accordance with this section to give such a direction in relation to the proceeding at that time.
Authorised Conference Registrar
(4) The President may authorise a particular Conference Registrar to be an authorised Conference Registrar for the purposes of paragraph (2)(a).
(5) An authorisation under subsection (4) may be:
(a) general; or
(b) limited to:
(i) a particular reviewable decision or particular reviewable decisions; or
(ii) reviewable decisions included in a particular class or classes of reviewable decisions; or
(iii) a particular proceeding or particular proceedings; or
(iv) proceedings included in a particular class or classes of proceedings.
(6) The President may at any time vary or revoke an authorisation under subsection (4).
(7) In this section:
"authorised Conference Registrar" means a Conference Registrar authorised under subsection (4).
"reviewable decision" means a decision in respect of which an application to the Tribunal for review has been, or may be, made.
I was not taken by the parties to any specific procedures put in place by the Tribunal to assist mentally disabled applicants. Whether or not there is some formal procedure in place it would, in my view, be open to the Tribunal to make arrangements for the assistance of a mentally disabled applicant who the Tribunal determined was not able to competently conduct a proceeding before the Tribunal himself or herself. There is no evidence that the Tribunal considered such a step necessary in the case of Mr Uyar. I formed a view that Mr Uyar was able to conduct the appeal proceedings in this Court himself. Although he appeared at times confused and disorganised and English is not his first language (he is of Turkish origin) I was able to satisfy myself that Mr Uyar understood the nature of the proceedings and what the Court expected of him. He did not require the assistance of an interpreter. In my view, it was open to the Tribunal to conclude, on the material before it, that whatever psychological impairments Mr Uyar may have, they did not excuse Mr Uyar from his failure to participate in the Tribunal’s review process. Mr Uyar was given a reasonable opportunity at the hearing on 6 April 2011 to persuade the Tribunal otherwise. He was unable to do so. I am not persuaded that there was any legal error by the Tribunal in making its decision.
Accordingly, I will order that the appeal of which notice was given on 4 May 2011 be dismissed.
I will hear the parties as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 October 2011